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Statutory Interpretation -'Ex Parte' versus 'In Camera'. Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
In this paragraph the court distinguishes the terms 'in camera' and 'ex parte':[64] The term “ex parte” is often defined as a proceeding undertaken without notice to an adverse party (see, e.g., Ruby, at para. 25; Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Ltd., 2003 FCA 256, 26 C.P.R. (4th) 161, at para. 29; Hover v. Metropolitan Life Insurance Co., 1999 ABCA 123, 91 Alta. L.R. (3d) 226, at para. 22; see also Nova Scotia Civil Procedure Rules, r. 23.14(1)(b) (the moving party on an ex parte motion must explain “why it is appropriate for the judge to grant the order without notice to another person”)). But even on this understanding of the term, I disagree with the Board that providing notice to adverse parties converts what would otherwise be a hearing held in the absence of the parties into one held in camera. Properly understood, “in camera” refers to the exclusion of the public from a proceeding, not the exclusion of parties. A proceeding in which an adverse party is aware of the hearing but is prevented from making submissions is not an in camera proceeding (see, e.g., R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389).
[65] Second, I agree with the respondents that the words “in camera” in the English text, like the equivalent expression “à huis clos” in the French text of s. 28(6), only refer to the judge’s examination of the recording and not to the Board’s ability to make submissions.
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